토지거래허가를 배제ㆍ잠탈하는 경우의 양도소득세 과세 여부

This article examines Supreme Court Decision 2010Du23644 Decided July 21, 2011, wherein the Court deliberated on whether transfer income tax should be imposed in cases where a party or parties have excluded or clandestinely avoided permission for land transactions. When, within an area where land transaction permission is mandated under the National Land Planning and Utilization Act, parties to a transaction effect a transfer to an actual extent without obtaining official permission for the transaction and do not seek to restore the original state of affairs, it would be unreasonable to allow the parties to enjoy non-taxed profit stemming from transfer marginal profit, as this would encourage unlawfulness and compromise taxation justice through condoning such taxation omissions. There is a need for taxation in such cases. Up to now rulings by the Supreme Court have stated that when a land transaction is void through failure to receive permission in an area where this is required, even should proceedings for the sale been paid already, these proceedings cannot be seen as income accruing from the transfer of assets upon which transfer income tax can be imposed. But this stance becomes untenable as it conflicts with the judicial stance taken by judgments that affirm taxation of so-called “illegal income”; as there are no reasonable grounds to make an exception for taxation only in the case of transfer income tax; when considering the criticism leveled on this stance, citing violation of justice and equity in taxation; and especially in such a case as this one where the plaintiff, the intermediary seller, has already enjoyed transfer marginal profits gained through resale of the land and has not restored the original state of affairs. As so, the case examined in this article modified the stance taken by previous decisions to affirm a stance of taxation, for the following reasons. Transfer income tax is imposed upon income accruing from the transfer of assets. Thus in cases where assets look to have been transferred through sale and purchase but then the contract for this sale proves to be invalid from the beginning or is invalidated afterward, the transferor should in principle return the price of sale to restore the original state of affairs, with this amount not becoming subject to taxation of transfer income tax. However, as defined in Article 88 (1) of the Income Tax Act, the term “transfer” refers to when any assets are actually transferred for price due to sale, exchange, investment, not necessarily that the contract for sales, etc., are legally valid. Meanwhile, in cases where a contract for sale and purchase, etc., is void due to being established with the purpose of evading or clandestinely avoiding permission for land transfer from the beginning, but the parties of the contract treat it as valid, with the selling party receiving the price of sale and keeping this in possession, the selling party must be seen as ultimately acquiring economic profit, upon which taxation should occur on the basis of “actual transference of assets.” Denying transfer income tax to be imposed upon this transaction, on the grounds that the sale and purchase contract is invalid from a legal perspective, results in the selling party enjoying transfer marginal profit without tax, which runs counter to justice and equity in taxation. As so, this judgment rules that in such cases where the parties to a land transaction, taking place within an area where permission must be granted for transactions of land, sold and purchased the land but then made as if the transaction was a gift and not a sale, with the goal of excluding or clandestinely avoiding the requirement to receive permission for transaction, or where a party has purchased land within an area where transaction permission is required, then resold this land to a third party without even receiving such permission and then received the sales amount but prepared a sales and purchase contract that indicates the original transferor had directly sold the land to the third party, gaining permission for this transaction and completing title change ― then exceptions must be made if the changed registration remains on record and the selling party or reselling party do not return the sales amount to the purchasing party or the third party, with this income being seen as accruing from the transfer of assets and becoming taxable as transfer income tax. The Supreme Court Decision examined in this article is significant in that it remedies an unfair result ― where the parties to a land transaction within an area where permission is required for such transactions, exchanged the sales amounts and transferred registration to the final purchaser, but then the selling party filed and won an action to dispute transfer income tax imposed upon himself ― and by doing so contributes to the realization of taxation justice.